Guenther v. St. Louis, I. M. & S. Ry. Co.

• Decision Date: 22 December 1891
• Parties: GUENTHER v. ST. LOUIS, I. M. & S. RY. CO.<SMALL><SUP>1</SUP></SMALL>
• Court: Missouri Supreme Court

18 S.W. 846

108 Mo. 18

GUENTHER v. ST. LOUIS, I. M. & S. RY. CO.¹

Supreme Court of Missouri, Division No. 2.

December 22, 1891.

RAILROAD COMPANIES — NEGLIGENCE — PERSONS ON TRACK — INSTRUCTIONS.

In an action against a railroad company for causing the death of a person walking on its track, it is proper to instruct the jury that, although the deceased was guilty of negligence in walking upon defendant's track, yet if, while so upon the track, deceased became in imminent peril of being struck by the defendant's train, and defendant's employes in charge of the train became aware of his peril in time, by the exercise of ordinary care, to have stopped the train, or if the employes, by the exercise of ordinary care, could have become aware of his peril in time to have done so, and they failed to exercise such care and stop said train, and by reason of such failure the deceased was struck and killed, then the jury should find for plaintiff.

Appeal from St. Louis circuit court; JAMES E. WITHROW, Judge.

Action by Elizabeth Guenther against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for the killing of plaintiff's husband, Jacob Guenther. Plaintiff obtained judgment, and defendant appeals. Affirmed.

H. S. Priest, for appellant. Rassieur & Schnurmacher, for respondent.

THOMAS, J.

This is the second appeal by defendant in this case. 95 Mo. 286, 8 S. W. Rep. 371. This record presents substantially the same facts that the former record presented, except that plaintiff offered no evidence as to whether or not the railroad embankment, at the point of the accident, was within the line of the main street of the city of St. Louis; and we refer to the opinion of the court on the first appeal for a statement of the facts and the issues of the case. On a retrial the court gave the following instructions at the instance of the plaintiff: "The court instructs the jury that although the deceased, Guenther, was guilty of negligence in walking upon defendant's track, yet if the jury believe from the evidence that, while so upon the track, said Guenther became in imminent peril of being struck by the defendant's train, and the defendant's employes in charge of said train became aware of his peril of being struck in time to have enabled them, by the exercise of ordinary care, to stop said train, and to have averted the injury to said deceased, or if the jury believe that said employes, by the exercise of ordinary care, could have become...